APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.
Jeffrey W. Langholtz on brief for appellant.
Carmen M. Ortiz, United States Attorney, and Randall E. Kromm, Assistant United States Attorney, on brief for appellee.
Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
Jorge Sanchez asks us to undo a district judge's order denying his motion to suppress. Concluding that we cannot, we affirm.
How the Case Got Here
One summer evening back in August 2011, Officer Mark Templeman of the Springfield Police Department got a phone call from a confidential informant (" CI," for short). A Hispanic man standing near a green Ford Taurus on the corner of Main and Calhoun streets had a black semiautomatic handgun in his waistband and crack cocaine in his pocket, the CI said. And he described the man as medium complected, roughly 5'5" tall, and wearing a white t-shirt and black cargo-style shorts. Asked by Templeman how he knew about the gun and the crack, the CI replied that he had personally " seen" them. Templeman knew the CI well, having worked with him since about 2007. Templeman knew the CI's name, phone number, and address, for example. And the CI had been a big help to police before, having given Templeman tips about street-level drug deals and firearm-possession crimes over the years that led to arrests and convictions -- as far as Templeman knew, the CI had never given him false info.
Responding to the tip, Templeman and other officers headed to the scene in several cars. Templeman drove alone, arriving at the locale about five minutes after the CI's call. There he saw a green Ford Taurus and a man matching the physical description given by the CI. Templeman recognized the man as Sanchez, a suspected gang member he had arrested in 2004 for possessing with intent to distribute heroin and cocaine -- an offense that resulted in a conviction, meaning (as Templeman knew) that Sanchez could not legally carry a firearm.
After surveilling the site for about 10 minutes, Templeman (who had binoculars) spied Sanchez put his left hand on his left hip: Sanchez's t-shirt hung over his waistband, and as Sanchez touched this area, Templeman could see the shape of some object underneath the shirt. Sanchez's movement reminded Templeman of how he (Templeman) checks his concealed firearm. As a result of his observations, and based on his training and experience, Templeman believed that Sanchez had a firearm. So he radioed his colleagues, telling them to " move in" and warning them about the gun tucked in the left side of Sanchez's waistband.
Staying in his car, Templeman watched an officer named Kalish close in, pat Sanchez's waistband, and grab the gun. Someone -- the record does not say who -- then arrested and cuffed Sanchez. And a search incident to the arrest turned up the crack. The total time from the CI's call to Sanchez's arrest was 15 minutes or so.
During booking, Sergeant Julio Toledo (the booking officer that evening) asked a not-yet-Mirandized Sanchez a series of standard questions about his name, date of birth, social-security number, height, weight, job held or school attended, etc. And when Toledo asked him whether he was employed, Sanchez matter-of-factly answered that he was " a drug dealer." By the way, Toledo played no part in the Sanchez investigation -- other than knowing the booking charges, Toledo knew nothing about the case against Sanchez. Also, Toledo had no info suggesting that his asking these standard booking questions might cause Sanchez to incriminate himself. What is more, Toledo did not ask the questions to further the investigation. And he did not ask Sanchez any follow-up questions tied to the " drug dealer" comment -- a comment Toledo shared with Templeman after booking.
A federal grand jury indicted Sanchez on three counts. Count 1 alleged that he had possessed cocaine base with intent to distribute. Count 2 alleged that he had possessed a firearm as a convicted felon. And count 3 alleged that he had ...